January 6, 2023 • By Dennis Beaver
There are two aspects to today’s story – the macro, or “big picture,” and the “small scale” real-world look at how the macro impacts real people.
Over the past few years as first the medical use of marijuana and then recreational consumption became legal, at present in 21 states, assumptions about the methods of legalization were often ignored.
“The war on drugs” saw no better example of billions of taxpayer dollars squandered and lives ruined than in Northern California and across the country, where it was assumed that once legal and regulated, as with alcohol, people would play by the rules and a productive industry would spring from the ashes of the new prohibition.
As is often the case, good intentions turn into bad nightmares when government regulators with little practical business experience are given carte blanche to dictate how a business should function. The wave of “Let’s legalize and we’ll all play nice” thinking overlooked something essential to the success of those initiatives: the belief that everyone would suddenly buy into the program and follow the rules.
So, while many cannabis growers attempted to comply with expensive rules, regulation is proving to be an engraved invitation for crooks to ignore government’s Miss Goody Two Shoes’s insane cultivation requirements.
A recent investigative article by the Los Angeles Times revealed how, in California at least, regulation has been a gift to the criminals who simply ignore the voluminous requirements to operate legally in this state. The flip side of regulation is bankruptcy.
As a drug enforcement sheriff’s deputy in Humboldt County told me, “We have every reason to believe there is even more cultivation on a small scale going on than ever before – in fact, your next door neighbor could easily have a grow in his home!”
That’s what 79 year-old Lilly is afraid of.
Real Pain for Landlords and Tenants
“Mr. Beaver, I’ve read your column in my local paper and need your advice. My property has a granny unit that I rent out. I am on a fixed income and this helps supplement what I make. Homes in this area were built over 50 years ago on large lots where the prevailing breeze goes from my next-door neighbor’s house toward my home.
“This neighbor has an adult son who not only smokes marijuana day and night but I am almost certain that he is growing it. We see him on their front porch constantly smoking.
“The odor makes it difficult for me to rent my unit. My current tenant said that he constantly has nausea and dizziness because of the odor. I have asked my neighbor for help and they said that their son can smoke in his home where he is safe.
“The constant odor is an issue for me. Do I have any recourse? I know that smoking marijuana on private property is not a crime but what if it impedes my quality of life or rental business? Please let me know if I can do anything.
“I did let my tenant know before he moved in that they do smoke next door but he said that it is constant, morning, noon and night and he cannot live here anymore.”
Lilly and her tenant are Dealing with a Private Nuisance
Lilly and her tenant are dealing with what the law calls a nuisance, which fall into two basic categories: public and private.
Owners and occupiers of land have a legal duty to not unreasonably interfere with a right that the general public shares in common, for example, by permitting vegetation to block a sidewalk or expose the neighborhood to property damage and injury by refusing to maintain and trim trees that are in danger of falling.
But when the interference is with, say, a house that you own or are renting, it is a private nuisance.
All kinds of things can form the basis of a private nuisance and noxious smells such as marijuana are among them.
What to do about it?
As the landlord, Lilly has a legal obligation to do what she can so that her tenant is not exposed to odors emanating from her neighbor’s property.
Sadly, while in my experience few city and county code compliance officers take these matters seriously, a complaint by 79 year-old Lilly might get some action,. Especially if it can be established that sonny boy has an illegal pot grow.
A Property Manager Shares His Opinion
Anthony Dolan, a property manager based in Pasadena and a friend of this column, notes that “Lilly’s tenant might refuse to pay rent as long as she failed to take legal action against the pot smoking neighbor. Her best course of action is to retain an attorney who would engage a private investigator to document the noxious smells and possible illegal activity, ask the neighbor to remedy the situation, and if she refuses, file suit to abate the nuisance. The cost to the neighbor could be into the thousands of dollars.”
While a few years old, an excellent study of these issues called “Smoking Marijuana in Multi-Unit Residential Settings,” published by the Tobacco Control Legal Consortium, is available online at publichealthlawcenter.org. I strongly recommend it to anyone facing a similar situation.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.